Last month, a federal court in Texas issued an order in the case E.A.F.F. v. United States, where eDiscovery costs were the primary focus. The U.S. had filed a Bill of Costs with the following charges:

Defendants seek “fees for exemplification and copies of papers necessarily obtained for use in the case” in the amount of $65,067.09. This amount includes two bills for $64,957.33 and $109.76 listed as “scanning of ORR [Office of Refugee Resettlement] documents for production.” Defendants state that the invoices reflect “the fees paid for scanning ORR documents for electronic production in this case.” Defendants argue that electronic scanning and imaging of paper documents is the modern-day equivalent of exemplification and copies of paper, and that the cost for scanning 442,855 pages comes to just over 14 cents per page.

Plaintiffs objected to these costs for a number of reasons, one of which is a contention that “copies made in responding to discovery are not recoverable costs”. Here’s the statutory language, plus more about the plaintiffs’ argument:

The costs of copying documents in response to discovery requests are generally recoverable under §1920(4), so long as the prevailing party demonstrates that the copies were necessarily obtained for use in the case. Plaintiffs argue that copy costs that “are merely for discovery” are not recoverable under §1920. Thus, Plaintiffs contend, “[a]bsent proof that documents were produced in anticipation of use as summary judgment evidence, expenses for documents that are merely produced in discovery are not recoverable.”

The court looks at cases including Rundus (5th Cir. 2011) and Country Vintner of North Carolina (4th Cir. 2013), the latter of which we’ve written about here at IT-Lex before, and concludes that “the copies were obtained for use during trial or trial preparation and thus were necessarily obtained for use in the case” and therefore were suitable for costs.

The plaintiffs’ other argument was that “the scanning expenses were for the convenience of counsel”, and therefore not essential, and not taxable. The court notes that most district courts within the Fifth Circuit have tended to allow the recovery of costs for scanning, including the aforementioned Rundus. This is consistent with outcomes in other jurisdictions too, like Race Tires, another case we’ve covered. Just when it looks like the taxation of costs will be permitted, there’s a wrinkle:

[Counsel's affidavit] indicates that Defendants scanned paper documents into electronic format, an activity that this Court finds to be equivalent to “making copies.” However, the attached invoices indicate that the costs may include more than just scanning.

The smaller invoice includes two separate costs: $92.12 for “document acquisition” described as “scan to digital image” and $17.64 for “document processing” described as “OCR Surcharge.” The larger invoice reflects a charge of $64,957.33 for “document processing” described as “Leased Space/Other Dir.” Thus, this invoice may include other costs such as hosting.

So the court gave Defendants leave to supplement their Bill of Costs to be more precise, and it looks like they’ll be getting most of what they asked for.